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MIGRATION - Review of the decision of Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution in the future for reasons of political association or ethnicity - where the situation in country of origin has changed - whether the Tribunal denied the applicant natural justice - whether the interpreter made errors in translation.

WAHG v Minister for Immigration [2003] FMCA 91 (19 March 2003)

WAHG v Minister for Immigration [2003] FMCA 91 (19 March 2003)
Last Updated: 28 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHG v MINISTER FOR IMMIGRATION
[2003] FMCA 91



MIGRATION - Review of the decision of Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution in the future for reasons of political association or ethnicity - where the situation in country of origin has changed - whether the Tribunal denied the applicant natural justice - whether the interpreter made errors in translation.



Migration Act 1958 (Cth), s.474

Judiciary Act 1903 (Cth)

Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2

Applicant:
WAHG



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 168 of 2002



Delivered on:


19 March 2003



Delivered at:


Perth



Hearing date:


17 March 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented with Interpreter



Counsel for the Respondent:


Mr J Allanson



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 168 of 2002

WAHG


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Afghani from the Mohammed Agha District, Logar Province, Afghanistan. He is a Tajik and a Sunni Muslim. He was born in 1979. The applicant arrived in Australia 25 March 2001 and applied for a protection (Class XA) visa. His application was refused by a delegate for the Minister on 21 May 2001 and he sought review from the Refugee Review Tribunal. The Tribunal affirmed the delegate's decision on 21 August 2001. On 14 January 2002 the Federal Court ordered that the Tribunal's decision be set aside and that the matter be remitted back to the Tribunal to be reconsidered according to law. French J held that the first Tribunal had failed to give consideration to whether there was a real chance of persecution of the applicant upon his return arising out of his having made a claim for protection in Australia.

2. The Tribunal, which made its decision on 31 May 2002, reconsidered the applicant's claims. By that time the situation in Afghanistan had changed significantly from the time when the matter was first before it. A migration agent represented the applicant. The matters put to the Tribunal at that time related to the problems which the applicant might face if he returned then to Afghanistan with its current political situation. Three maters were raised.

3. The first argument put by the applicant's representative was that it was still unsafe for a person to return to Logar Province because the writ of the interim government and the international forces which supported it did not run there. The second matter put before the Tribunal was that the applicant's father, who had disappeared under the Taliban, had been a member of a political grouping known as Hezb-i-Islami. It was a grouping which set itself against foreigners in Afghanistan and would thus be in opposition to the view of the current interim government. The applicant claimed that this political association of his father's would be visited upon him and he would be persecuted upon his return.

4. The third matter which was raised by the applicant's representatives, although it had not been mentioned previously by the applicant, was that some members of the applicant's family were Pashtun and this would cause him problems and persecution if he returned.

5. In preparation for these proceedings the Federal Court made orders on 12 July 2002. These orders included requiring the applicant to file an amended application giving particulars of any grounds of review under the Judiciary Act 1903 (Cth) or a written statement setting out the reasons why he considered the decision of the Refugee Review Tribunal was wrong and any affidavit he intended to file. The applicant was also required to file and serve an outline of submissions at least five working days before the hearing. The applicant did not do this. The court was left with his application for review which stated:

"The RRT member didn't pay attention to find out the facts. That the RRT made a mistake and there is an error in the decision of RRT so I would like to apply Federal Court."

The grounds of the application were stated to be:

"I am Afghan asylum seeker. I arrived in Australia 25 March 2001. My father was involved in Hezb-i-Islami politic party is leading by Hekmatyar. Mr Hekmatyar is in risk. You can hear the news. I've got that information including those information which shows that I am still in danger. Now if I return to my country so I will be 100% treat by new government possibly they will kill me.

I would like to request Federal Court to pay their attention on RRT member's decision. RRT made mistake. They didn't pay her attention to find out the facts. There is a bigger error in the decision of RRT."

6. When the matter came before me for hearing an interpreter assisted the applicant. However, it became clear through the course of the hearing that the applicant did speak English reasonably fluently and understood the arguments being put by Mr Allanson who appeared on behalf of the respondent. When I asked the applicant to explain to me the reasons why he believed the Tribunal had acted unlawfully in the manner in which it came to its decision, he informed me that he believed that the interpreter had made a mistake. He said he had problems communicating with the interpreter. He felt that the mistakes made by the interpreter affected the decision of the Tribunal. He put to me the example of the game of cricket where one catch might make all the difference to the result in a game, and suggested that one error of the interpreter could affect the whole decision of the Tribunal. Whilst I had no difficulty in accepting this comparison I was unable to obtain from the applicant any indication of the areas in which he was claiming that the interpreter was wrong. At one stage he began talking about the interpreter at the first Tribunal. He said:

"There are many mistakes. I don't know them all. They do make a difference."

It appeared after discussion with me that this remark referred to the first interpreter. He then said:

"The second interpreter made even more mistakes. I can't remember what they are but he did make some. After I listened to the cassette I could tell the interpreter wasn't concentrating and he made a few mistakes."

7. This was the first time that the applicant had raised the matter of the interpreter. I accept that if there are difficulties in interpretation then an applicant may effectively be denied procedural fairness in relation to his hearing. This is particularly important when the credibility of the applicant is in issue. This is not such a case. The Tribunal accepted the applicant's evidence about himself and did not put the question of his credibility in issue at all. It came to certain views about his claims concerning the situation in Afghanistan on the basis of country information which it had at its disposal. The Tribunal compared that information with the information provided by the applicant's agent. It came to a conclusion concerning the applicant's fear of persecution arising out of his father's membership of a political organisation on the basis of a view about the Afghani people in the Logar Province. The only area in which problems relating to interpretation might have affected the Tribunal was in the claim made by the applicant's advisers concerning members of his family being of Pashtun ethnicity. In this regard the Tribunal noted that it was not a claim made by the applicant and he had provided no evidence to support his advisers comments in this respect. The applicant did not argue before me that any responses that he gave in respect of questions in regard to this aspect of his claim had been misinterpreted. If he had done so I would have had regard to the tape. Although I think that in order to establish his case the applicant would have to prove both misinterpretation and the likelihood of that resulting in a material misunderstanding by the Tribunal.

8. The applicant did not refer to his Pashtun relations in any of the representations he made to me. He did refer to his claim of persecution arising out of his father's political association. He said that children are imputed with a father's political association and that was why he would be in danger.

9. The Tribunal considered the applicant's claims in this regard at [CB 117] and said:

"Furthermore, I do not accept the applicant's evidence at the hearing to the effect that people in his home area would persecute him because he is a member of a particular social group, namely his father's family; or because of an imputed opinion of political support for Hekmatyar or the Hezb-i-Islami. Given his evidence at the hearing that his father ceased his political support for Hekmatyar twelve or thirteen years ago out of loyalty to Ahmed Shah Massoud, I find it implausible that people in his home area would have continued to identify his father with Hekmatyar or that they would have imputed an opinion of political support for Hekmatyar or the Hzeb-i-Islami to the applicant. I therefore find that the applicant does not have a well-founded fear of being persecuted by people in his area for reasons of his membership of a political social group defined as his father's family, or for reasons of political opinion."

10. I am satisfied that this assessment of the claim of imputed political association was considered by the Tribunal and that the reasons which it gave for dismissing it were available to it. The applicant's case was not put upon the basis that the Tribunal had committed some error of law in coming to this conclusion, only that it was a conclusion that was incorrect and that the Tribunal did not understand the nature of things in Afghanistan. This is not a reviewable error.

11. The Tribunal came to its conclusion concerning the safety of returnees to Logar Province on the basis of general country information. Whilst there is no indication from the Tribunal's reasons that any of this information was specifically put to the applicant or his advisers it is information of a general nature that is not required to be so put. There is no reason to believe that the Tribunal did not read the information provided by the advisers. There is obviously a serious difference of opinion between those who act on behalf of Afghani asylum seekers and the Tribunal as to how safe Afghanistan is for returnees outside of Kabul. But this is a factual dispute which the Tribunal is charged with resolving. It is not one in respect of which this court can interfere. In all the circumstances I am unable to see any way in which the Tribunal has failed to provide the applicant with natural justice so that its decision is one in respect of which s.474 of the Migration Act 1958 (Cth) would apply (Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2).

12. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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